Ordinary Administrative Law as Constitutional Common Law

Henry Monaghan famously argued that much of constitutional interpretation takes the form of what he termed constitutional common law, a body of doctrines and rules that are constitutionally inspired but not constitutionally required and that can be altered or reversed by Congress. This Essay argues that a fair amount of ordinary administrative law qualifies as constitutional common law: Constitutional concerns permeate core administrative law doctrines and requirements, yet Congress enjoys broad power to alter ordinary administrative law notwithstanding its constitutional aspect. Unfortunately, the constitutional common law character of much of ordinary administrative law is rarely acknowledged by courts. A striking example of this lack of acknowledgment is the 2009 decision in FCC v. Fox Television Stations, Inc., in which the Supreme Court insisted that whether an agency action is “arbitrary and capricious” and whether it is unconstitutional are separate questions. Recognizing the interrelationship between constitutional law and ordinary administrative law is important both for the ongoing debate over the legitimacy of constitutional common law and for proper appreciation of the role administrative agencies can play in our constitutional order. Underlying many attacks on constitutional common law is a view of constitutional law as having a narrow and determinate scope. Yet the interwoven relationship between ordinary law and constitutional law in the administrative law context suggests this view of constitutional law is false. In addition, seeking to enforce constitutional norms through ordinary administrative law better accords with constitutional principles than efforts to segregate out the two and is likely to prove less intrusive to the policymaking prerogatives of the political branches. The better critique is not the extent to which constitutional common law surfaces in administrative contexts, but rather the lack of transparency that accompanies it. INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 480 R I. CONSTITUTIONAL COMMON LAW IN ADMINISTRATIVE CONTEXTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 486 R A. Connections Between Constitutional Law and Ordinary Administrative Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 487 R 1. Ordinary Administrative Law as Constitutionally Mandated . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 487 R 2. Ordinary Administrative Law as Constitutionally Inspired . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 490 R 3. Encouraging Administrative Constitutionalism . . . . 497 R